Sunday, 29 November 2015

The United Kingdom has its finger
in many pies: the EU, NATO, the United Nations Security Council and the
Commonwealth, to name just a few. Of these, the Commonwealth – which has just
finished its latest summit meeting – obviously has the closest specific link to
British culture and history, since it’s mainly comprised of our former
colonies. (A few Commonwealth members are not former colonies, and some obscure
ex-colonies like the USA chose not to join. For a full list of members, see here).

Like many British citizens, I
have friends and relatives in many Commonwealth countries: Canada, India, New
Zealand, Australia, Singapore and South Africa. But I also have friends in the
rest of the EU, as well as a professional interest in EU law. There’s no incompatibility between the two at a personal level: we can all enjoy poutine as well as paella, or watch Antonio
Banderas one day and Hugh Jackman the next. But is the same true of the UK's trade relationships?

When the UK joined the EU over
forty years ago, it sundered special trade links which it had with most of the
Commonwealth, and replaced them with trade links with the EU (as it’s called
now). One of the arguments sometimes invoked in favour of the UK leaving the EU
in the forthcoming referendum on membership is that the UK could reverse this
process, reviving its Commonwealth trade.

But a lot has changed in forty
years. In my view, what’s true for individuals is also true for the country as
a whole: the UK does not have to choose between trade with the Commonwealth and
trade with the EU, but can (and increasingly does) have both. This blog post explains
why. (I’ll write another post on the issue of the EU’s trade with
non-Commonwealth countries in future).

Background

Back in 1973, the UK had to end
special trade ties with the Commonwealth because the EU is a customs union,
which (according to the definition set out in international law) means that it has
common trade rules with the rest of the world. The EU has power to sign certain types of trade deals, instead of its Member States (although in practice those deals are usually subject to Member States' unanimous consent). But the EU’s powers don’t extend
to all types of ‘trade deals’, as that phrase is used by non-specialists. Those powers apply to the imposition of taxes at the border (known as tariffs) or other economic regulation of trade between
countries, but not to commercial
agreements with other countries to buy British goods. So, for instance, the UK
and India were free to conclude £9 billion worth of trade deals of that
broader type during the recent visit of the Indian Prime Minister.

It’s sometimes argued that trade
deals are irrelevant, because ‘governments don’t trade, businesses do’. While
it’s true to say that much trade takes place on the basis of contracts between
companies, governments still play a large role – either as purchasers of many goods
and services, or as regulators with the power to impose tariffs or regulation
which might reduce the volume of trade.

When the UK joined the EU, the EU
was mainly only interested in special trade deals with nearby countries (although this
included the Commonwealth countries of Cyprus and Malta). Mostly the EU then preferred to trade with third countries on the basis of multilateral rules instead. However, the EU did extend its existing
special trade agreement for former sub-Saharan African, Caribbean and Pacific
(ACP) colonies of France and Belgium to most of the former colonies of the UK
in those parts of the world. But it did not extend any special treatment to richer
Commonwealth countries, like Canada and Australia, or Commonwealth states in
Asia, like India or Malaysia.

But times have changed. In recent years, the EU has become more
interested in negotiating bilateral trade agreements with many countries, and
not relying so much on the multilateral trade system established by the World
Trade Organisation (WTO). This has transformed the EU’s trade relationship with
Commonwealth countries (along with many other states). Some of these treaties don't have the words 'free trade agreement' in their title, but the substance includes free trade rules; and indeed the agreements are notified as free trade agreements to the World Trade Organisation.

EU/Commonwealth trade today

The result of this change in
policy is that the EU has agreed free trade agreements (FTAs), or is in the
process of negotiating free trade agreements, with the vast majority of
Commonwealth states – a full 90% of the 50 Commonwealth countries that are not
in the EU. This includes the six Commonwealth states that accounted (in 2011) for 84% of Commonwealth trade – and many more besides.

More precisely, there are already
FTAs in force between the EU and 18 of those 50 Commonwealth states (36% of the
remaining Commonwealth). The EU has agreed FTAs with 14 of those countries (28%),
subject only to completing the ratification process. It is negotiating or about
to start negotiating FTAs with 13 states (26%). That leaves only 5 Commonwealth
states (10% of the non-EU total) that the EU is not planning FTA talks with. (For
full details of the status of EU trade relations with each of the countries
concerned, with links to further information, see the annex to this blog post).

Of course, the Commonwealth includes
many different types of economy, but the EU has agreed FTAs with two of the
wealthiest Commonwealth states (Canada and Singapore), and has recently
committed to talks with two more (Australia and New Zealand). It also has deals
or is negotiating with most of the larger developing Commonwealth members
(India, Nigeria, South Africa and Malaysia).

It’s sometimes suggested that the
EU’s trade deals with other countries don’t benefit the UK. But the UK’s exports
to Commonwealth countries have been increasing at over 10% a year – with increases
(over two years) of 33% to India, 31% to South Africa, 30% to Australia and 18%
to Canada. In fact, since 2004, British exports to India are up 143%. Needless
to say, this increase in trade with the Commonwealth (while an EU member) must
have created or maintained many British jobs.

Criticisms of the EU’s trade policy

The EU’s trade policy is often criticised
on three particular grounds. While there may be some force to these arguments,
the issue in the upcoming referendum is whether these problems would actually
be solved by the UK leaving the EU.

First of all, it’s often argued
that EU trade agreements are not fair for developing countries. In fact,
the EU’s negotiation of FTAs with developing Commonwealth countries in the last decade is
in part due to WTO rulings that the EU could not just sign one-way trade deals, liberalising only access to EU markets; such treaties have to liberalise trade on both sides (the EU had resisted
this). The EU does offer less generous unilateral trade preferences as an alternative to two-way deals (and some Commonwealth states, like Bangladesh, prefer this).

If the UK left the EU, it could
decide not to sign trade deals with
some of the developing Commonwealth countries that the EU has signed deals
with. It could also offer a more generous version of unilateral trade
preferences. However, the UK would not
be free to sign deals for one-way trade liberalisation, since it would be bound
by the same WTO rules on trade agreements that the EU breached when it signed
those deals. Moreover, while not replacing the EU’s trade deals would arguably
help the poorest countries’ economies, UK exports to those States would
logically be lower.

The second argument is that the
EU’s trade deals are a problem for the environment and public services,
and give industry overly generous intellectual property protection, with
the result (for instance) that prices of basic medicines rise due to extended patent
protection. But this argument is equally made against many trade deals that the
EU is not a party to at all – such as the recent Trans-Pacific Partnership agreement.

So, while (stepping outside the
Commonwealth for a moment) the planned EU/US trade agreement, known as TTIP, has
attracted critics concerned about its effect upon the UK’s health care (among
many other things), those issues would not magically go away if the UK, having
left the EU, sought to negotiate its own trade agreement with the USA instead. The
controversial parts of the draft deal are surely attractive to the US side as
well as the EU side; it’s not as if the EU is in a position to issue non-negotiable
demands to desperate, poverty-stricken Americans.

The third argument is that the EU
is not sufficiently interested in pursuing trade deals. As the facts discussed
above show, it’s quite false to suggest that the EU is not interested in trade deals
with Commonwealth countries, or that the UK's EU membership makes it impossible for British businesses to
increase their exports to those countries. But could it be argued that the UK alone
would do a better job of negotiating such trade deals, and negotiating them more
quickly, after Brexit?

It’s true that it often takes
years to negotiate EU trade agreements, and that some negotiations stall or
slow down to a snail’s pace (with India, for instance). But this is not unique
to the EU. Over twenty years ago, for instance, the Clinton administration developed
a plan for a ‘Free Trade Area of the Americas’ – but it has never come to full
fruition, and talks eventually fizzled out. There’s no guarantee that the UK
alone would be able to reach agreements more quickly than the EU as a whole.

In any event, as noted above, the
EU already has agreed trade deals with 64% of Commonwealth countries, and is
negotiating with another 26%. Some of the latter negotiations are likely to be
completed by the time that Brexit took place – since that would probably happen
two years after the referendum date, so likely in 2018 or 2019 (for more
discussion of the process of withdrawal from the EU, see here).

So the UK would have to ask perhaps
three-quarters of its Commonwealth partners for trade deals to replace those
already agreed with the EU. They might agree quickly to extend to the UK a parallel version of their
existing arrangement with the EU, since that would not really change the status
quo. But they might not be interested in negotiating any further trade liberalisation. If they are interested, they will ask
for concessions in return, and this will take time to negotiate.

For the remaining one-quarter or
so of states, the UK will have to start negotiations from scratch, in some
cases having to catch up with EU negotiations that are already underway. And
there is no guarantee that these other states will want to discuss FTAs, or that
negotiations would be successful.

Overall then, there’s no
certainty that UK exports to the Commonwealth would gain from Brexit. They
might even drop, if some Commonwealth countries aren’t interested in
replicating the EU’s trade agreements. Alternatively, they might increase – but
it’s hard to see how any gain in British exports would be enormous, given the
existence of so many FTAs between the EU and Commonwealth countries already,
and the uncertainty of those states’ willingness to renegotiate those deals.

Could this very hypothetical increase
in exports to the Commonwealth make up for any loss in UK exports to the EU
following Brexit? Obviously, this assessment depends on how Brexit would affect
UK/EU trade relations. That’s a hugely complex subject, which I will return to
another day, but suffice it to say that while I think a UK/EU trade deal after
Brexit is likely, it’s far from guaranteed. And it’s hugely unlikely that any such
trade deal would retain 100% of the UK’s access to the EU market. There are
many reasons to doubt this could happen, but first and foremost: why would the
EU send the signal that a Member State could leave the EU but retain all of its
trade access? If it did that, the EU would be signing its own death warrant.

The key fact to keep in mind here
is that the UK’s trade with the Commonwealth is less than one-quarter of its trade
with the EU. So to make up for even a 10% drop in exports to the EU, the UK
would have to increase exports to the Commonwealth by more than 40%. How likely is that, if the vast majority of trade between the EU and the Commonwealth would
already be covered by FTAs at that point?

Taken as a whole then, it’s clear
that the UK can remain a member of
the EU and trade with the
Commonwealth – and that this trade will only increase in future as more EU FTAs with
Commonwealth states come into force or are negotiated. Leaving the EU, on the
other hand, is liable to lead to reduction in trade with the remaining EU
without any plausible likelihood that trade with the Commonwealth would
increase by anything near the level necessary to compensate.

Annex

Canada: FTA agreed.
It must still undergo the formal ratification process.

2 Pacific Commonwealth states: FTA in force with Papua New
Guinea and Fiji

7 more Pacific Commonwealth states: FTA under negotiation between
EU and 12 more countries including Kiribati, Nauru, Samoa, the Solomon Islands,
Tonga, Tuvalu and Vanuatu

3 West African Commonwealth states: FTA agreed with 16 West
African countries including Nigeria, Ghana and Sierra Leone. It must still undergo the formal
ratification process. (Note that Gambia left the Commonwealth in 2013; but it
is also part of this agreement).

4 East African Commonwealth states: FTA agreed with 5 East African
countries including Kenya, Tanzania, Uganda and Rwanda. It must still undergo the formal ratification process. (Update: the Commission proposed the signature and provisional application of this deal in February 2016)

2 Southern and Eastern African Commonwealth states: FTA in force
with 4 Southern and Eastern African countries including Mauritius and
Seychelles (and also Zimbabwe, a former Commonwealth country).

2 other Southern and Eastern African Commonwealth states: FTA under
negotiation with 7 more Southern and Eastern African countries including Malawi
and Zambia.

5 Southern African Commonwealth states: FTA agreed with Botswana,
Lesotho, Namibia, Swaziland and Mozambique.
It must still undergo the formal ratification process. (Update: the Council decided on the signature and provisional application of this deal in June 2016; it will be signed and enter into force provisionally in mid-June).

Wednesday, 25 November 2015

Daniel Sarmiento, Professor of EU Law at the University
Complutense of Madrid*

In a short time-frame, two high courts of two Member
States, the FrenchCour de Cassation and the SpanishTribunal
Constitucional, have delivered two important judgments on the
implementation of EU Law by lawyers and domestic courts. The two decisions
touch different subject-matters and deal with different claims, but they are
equally relevant for what they represent for the correct implementation of EU
Law. As I said a few weeks ago in a previous post, national high courts
are becoming key players in EU Law, and the Court of Justice should cherish and
look after this highly valuable ally.

Last May, the French Cour de
Cassation ruled in favor of a former worker who had sued his lawyer for not
making a proper defense of his client (see the judgmenthere). The lawyer did not
invoke the Court of Justice’s case-law stated in the well-known cases of Mangold, Kücükdeveci, Petersen,
etc., on discrimination on the grounds of age. As a result of it, the worker
lost his case against his former employer. The Cour de Cassation stated that
the claimant’s chances of success in case of having invoked the Court of
Justice’s case-law were up to 80%. Therefore, the certainty of the loss
suffered entitled the claimant to successfully claim damages from his lawyer.

Yesterday, the Spanish
Constitutional Court, in plenary formation, ruled in favour of another worker
whose claim based on EU Law was plainly ignored by the High Court of Madrid
(see the judgmenthere). Following the Court
of Justice’s case-law in the cases of Gavieiro Gavieiro, Lorenzo Martínez and
others, which solved a series of cases identical to the one of the claimant, it
was obvious that this case-law applied and solved the case. However, the High
Court of Madrid ignored this and dismissed the claimant’s appeal.

The Spanish Constitutional Court
has now stated that any jurisdiction in Spain that ignores a judgment of the
Court of Justice is breaching the fundamental right to a fair trial, as
provided by article 24 of the Spanish Constitution. This gives any claimant in
such circumstances the chance of invoking another ground of appeal, and, above
all, the use of the special procedure for the protection of fundamental rights
before the Constitutional Court (recurso de amparo).

These two judgments impose
considerable responsibilities on lawyers and judges. The French decision sets a
high standard of professional expertise on practitioners, especially on those
who are highly qualified and (as in the case of France) allowed to plead before
the highest courts of the country. The Spanish judgment is a nice reminder for
all courts in Spain that the case-law of the Court of Justice is binding
in the strongest possible way, and therefore binding for all courts. Both cases
have in common a total absence of reference to EU Law, by the lawyer in his
submissions in one case, and by a court in its judgment in another.

Therefore, the sum of both
decisions is not revolutionary, because it is obvious that a total lack of
reference to the applicable law, whether it is national or EU Law, raises
serious issues about the decision at stake. However, it is important that the
highest courts of Member States are assuming the task of ensuring the correct application
of EU Law. This is of course a matter for the Court of Justice, but also for
its domestic counterparts too. And it is nice to see that these cases have been
solved without the need to make a preliminary reference to the Court of
Justice. High courts know what their role is and how it must be put into
practice under national law. Now it is time for lawyers and for the remaining
domestic courts to act accordingly.

Monday, 23 November 2015

For
a number of years, the EU has aimed to attract highly-skilled non-EU migrants
to its territory. However, the existing legislation on this issue – the researchers’
Directive, adopted in 2005, and the students’
Directive, adopted in 2004 – have only had a modest impact on
attracting more students and researchers to the EU, according to the Commission’s
reports (see here and here)
on the two Directives, issued in 2011.

Consequently,
the Commission proposed an overhaul of this legislation in 2013. The
European Parliament (EP) and the Council recently agreed on the text of this
proposal (for the text of the provisional version of the future Directive, see here;
the final version will be ‘tidied up’ a little legally). As you would expect, the
EP and the Council compromised between their respective positions (for those
positions, see here and here),
which I discussed in an earlier blog post. [Update: the Directive was officially adopted in May 2016. Member States must apply it by May 2018.]

I’ll
examine first the background and content of the new Directive, then look at how
effective it is likely to be in its objective on increasing the numbers of
researchers and students coming from third States.

Background

The
current students’ Directive also applies to the admission of school pupils on
exchange programmes, unpaid trainees and volunteers, although Member States
have an option to apply it to the latter three groups of migrants. The CJEU has
ruled twice on the interpretation of this Directive. In Sommer
it ruled that Member States could not apply a labour-market preference test for
students; in Ben Alaya case (discussed here),
it ruled that Member States must admit students who comply with the rules on
admission in the Directive. The same logically applies to the current
researchers’ Directive. The UK and Denmark opted out of both Directives, while
Ireland opted in to the researchers' Directive. All three countries have opted
out of the new law.

The new law

The
new Directive merges the students’ and researchers’ Directives, making major
changes to them both. First of all, the Commission proposed that Member States would
be obliged to apply the currently optional rules relating to school pupils,
unpaid trainees and volunteers, as well as rules on two new groups of migrants:
au pairs and paid trainees. The EP agreed with this idea, while the Council
rejected it entirely. Ultimately, the two institutions compromised: the new
Directive will have binding rules on (paid and unpaid) trainees and some
volunteers (those participating in the EU’s European Voluntary Service), although
stricter conditions will apply to the admission of trainees (more on that
below). However, the rules on other volunteers and school pupils will remain optional,
along with the new rules on au pairs.

Next,
the Commission proposed to limit Member States’ current power to apply more
favourable rules for students and researchers, confining that power to only a
few provisions relating to the rights of migrants, while fully harmonising the
rules on admission. The final Directive accepts the basic principle that the
power to set more favourable standards should be more limited that at present,
but imposes fewer such constraints than the Commission wanted. Member States will
be allowed to apply more favourable rules for the persons concerned as regards
the time limits on their residence permits. Many of the conditions relating to
admission and withdrawal or non-renewal of the right to stay will be optional,
not mandatory (as the Commission had proposed), and the Council insisted on
many additional options being added. A clause in the preamble sets out the Council’s
wish to provide expressly that Member States can have rules on admission of other categories of students or
researchers.

Against
the Commission’s wishes, the final Directive provides that the current rules on
delegating decision-making to research institutions or universities will remain.
Furthermore, it adds that Member States can optionally delegate such powers as
regards volunteers or trainees as well.

Trainees
are defined (more restrictively than the current law) as those who have
recently completed a degree (within the last two years), or who are currently undertaking
one. Their time on the territory is limited to six months, although this can be
longer if the traineeship is longer, and the authorisation can be renewed once.
But Member States retain the power to set more favourable standards as regards
these time limits.

One
striking feature of the agreed Directive is a new right for students and
researchers to stay after their research or study to look for work or
self-employment. The EU institutions agreed on the principle of this right, but
disagreed on the details. According to the Commission, the right should apply for
a period of 12 months, although after 3 months Member States could check on the
genuineness of this search, and after 6 months they could ask the migrant to
prove that they have real prospects. The EP wanted to extend the period to 18
months, and to make Member States wait longer to check on the genuineness of
the job search or likelihood of employment. On the other hand, the Council wanted
several restrictions: to reduce the stay to 6 months; to allow Member States to
limit students’ possibility to stay to those who have at least a Master’s
degree; to check on the likelihood of employment after 3 months; and to give
Member States an option to limit the job search to the areas of the migrant’s
expertise. The final deal splits the difference on the period of extra stay (it
will be 9 months), and accepts the various optional limits on the right which
the Council wanted.

As
for students’ right to work, the current Directive allows them to work for at
least for 10 hours a week. The Commission proposed to let them work for 20
hours a week, and to drop the option to ban students from working during their
first year of studies. The EP agreed with this, but the Council wanted to
revert to the current 10-hour a week limit, and introduce a possible
labour-market preference test (overturning Sommer). Again, the
final deal splits the difference: 15 hours’ of work allowed per week, with no
labour market preference test.

Another
issue was equal treatment of those who work. Currently, the EU’s single permit Directive provides for equal treatment of most third-country
nationals who are allowed to work, even if (like students) they were not admitted
for employment. However, that Directive excludes au pairs from its scope, and
only applies where the relationship is defined as ‘employment’ under national
law; this will not always be the case for researchers. The new Directive will
extend the equal treatment rules to students and researchers, even if they are
not considered employees, and to au pairs whenever they are considered
employees. Even non-employees will have equal treatment for goods and services
(besides housing and public employment offices). But the new Directive will not
waive any of the various exceptions to equal treatment that the single permit
Directive currently provides for, besides a few minor exceptions for researchers.

Also,
the new Directive will replace the weak rules on family reunion in the current
researchers’ Directive with a fully-fledged right to family reunion. The EU’s
family reunion Directive
will applyto Directive will apply to researchers, and many of the restrictions
in that Directive will be waived: the minimum waiting period; the need to show a
reasonable prospect of permanent residence; the need to show integration
requirements for family members before entry (those rules can still be applied after
entry; on the CJEU’s interpretation of those rules, see here). There will
also be a shorter deadline to process applications, and family members will have
a longer period of authorised stay. The EP and Council compromised on the Commission’s
proposal to waive the waiting period before family members could access the
labour market: the Council wanted to delete this proposed rule entirely, but it
agreed to it with a derogation for ‘exceptional circumstances such as
particularly high levels of unemployment’. However, the EP got nowhere with its
suggestion to extend these more favourable rules to the family members of
students as well.

The
Commission aimed to simplify the current rules on the movement (‘mobility’) of
researchers and students between Member States for the purpose of their studies
and research. It also proposed to extend those rules to paid trainees, while
the EP wanted to extend those rules to cover unpaid trainees and volunteers as
well. However, the Council prevailed on this issue, restricting the scope of
these rules to researchers and students (as at present), and adding very
complicated details to the proposal on this issue.

Finally,
the Commission proposed to introduce a 60-day deadline to decide on
applications for admission, shortened to 30 days for those benefiting from EU mobility
programmes. (The current laws have no deadlines to decide on applications at
all). The EP supported an even shorter period to decide on
applications (30 days), while the Council wanted to raise the time limit to 90
days. Yet again, these institutions split the difference, with a 90-day general
rule and a 60-day rule where institutions have been delegated the powers to
decide on applicants.

Comments

The
agreed Directive should be appraised in light of the Commission’s impact
assessment report for
the proposed Directive, which made detailed arguments for the amendments which
the Commission proposed. This report provided evidence that students or
researchers are attracted to a job-search period after the end of research or
studies, as well as by further employment rights for students and for
researchers’ family members. Certainly the new Directive addresses all of these
issues to some extent.

Conversely,
would-be migrants are deterred by the great variety of national rules and the
rules on mobility between Member States. On this point, the new
Directive will only reduce the variety of national rules modestly, and will
install mobility rules more complex than those applying at present.

Presumably,
it is also a deterrent for would-be students and researchers who are already
legally present to leave the country to make their applications. To address
this, the EP wanted to oblige Member States to consider in-country applications
for researchers, but ultimately it could not convince the Council (or the
Commission) to change the existing rules, which give Member States only an
option to allow this.

As
for the additional scope of the Directive, it is striking that the new binding
rules on admission only apply to trainees who are undertaking or who have
completed higher education, and to volunteers in the EU’s own programme. The
latter change in the law is necessary in order to ensure the effectiveness of
that programme, but the former change in the law is another example of the EU
focussing its migration policy upon highly qualified employees. (Remember that according
to the preamble to the new Directive, the admission of trainees who have not entered higher education is left
entirely to national discretion). It’s unfortunate that at least the rules on
equal treatment aren’t binding for all volunteers, school pupils and au pairs,
to ensure that these migrants are not exploited and that domestic labour
standards are not undercut.

Many
of the changes in the Directive intending to attract qualified migrants would
make even more sense if they were part of a ‘joined up’ policy – for instance,
allowing trainees to make an in-country application for studies or research, or
waiving some of the conditions in the EU’s ‘Blue Card’ Directive for
highly-skilled migrants (reducing the income threshold, for instance) for
graduate trainees, researchers, and students looking for work under this new
Directive. Fortunately, there will be a chance to address this issue in the
near future, as the Commission will soon be proposing an amendment to the Blue
Card Directive (on the reform of that Directive, see here).

Overall,
then, the new Directive has gone some distance towards accomplishing its
intended objectives, but its effect could be further augmented in the near
future by a broader reform of EU law on highly-skilled immigration in general.

Monday, 16 November 2015

Most crimes have victims. Those victims are
often not only devastated by the impact of the crime, but also frustrated by
the insensitivity of the criminal justice system towards their concerns. To
address this, back in 2012 the EU adopted a Directive on crime victims’
rights, which Member States must comply with by today’s date. This law replaces
a previous EU law on the subject, a Framework Decision dating back to
2001. What is different about the new rules? How much impact could they have on
victims’ rights in practice?

Previous law: the Framework Decision

The
Framework Decision had to be applied in phases between March 2002 and March
2006. It defined a ‘victim’ broadly, as meaning ‘a natural person who has
suffered harm, including physical or mental injury, emotional suffering or
economic loss, directly caused by acts or omissions that are in violation of
the criminal law of a Member State’. According to the CJEU rulings in Dell’Orto
and Eredics, in light of this definition, the Framework Decision
did not apply to legal persons as victims. Nor did it require Member States to
make legal persons criminally liable for their acts (Giovanardi).

It
applied to ‘criminal proceedings’ defined in accordance with national law, and
the Court of Justice confirmed in Katz
that this included private prosecutions. But the CJEU also ruled (in Gueye and Salmeron Sanchez) that it did not
harmonize substantive criminal law, such as domestic violence legislation.

As to the substance, the Framework Decision provided
first of all generally for ‘respect and recognition’ for crime victims,
requiring that each Member State ensure that victims have a ‘real and
appropriate role in its criminal legal system’, that they ‘are treated with due
respect for the dignity of the individual during proceedings’ and that they
‘recognise the rights and legitimate interests of victims’. In the case of
‘particularly vulnerable victims’, there was an obligation to provide ‘specific
treatment best suited to their circumstances’. Member States also had to make
provision for victims to supply evidence, but to refrain from questioning them
any more than necessary. Bringing these points together, the ‘most vulnerable’
victims had to able to testify in a manner which protected them from the
effects of giving evidence in open court, by means compatible with national
legal principles.

In the well-known Pupinojudgment, which concerned
very young children who were allegedly abused in a nursery by their teacher,
the Court of Justice unsurprisingly ruled that such victims must be considered
‘vulnerable’ pursuant to the Framework Decision – leaving aside the bigger
question of whether all minors must be considered ‘vulnerable’. So these
victims were entitled to the protection of a special procedure in which they
did not have to give their testimony in court, as long as this was consistent
with the right to a fair trial. But in the later judgment in X, concerning alleged sexual
abuse of a child, the CJEU ruled that this did not entail an obligation to use those special
procedures where in effect the victim was asking for their use as a means to overrule
the discretion to bring proceedings which national law gave to prosecutors.

Similarly, in the Katz case, the Court ruled
that a person bringing a private prosecution did not have the right to demand,
in light of the generality of the Framework Decision, that he have the status
of a witness; but nevertheless the Framework Decision required that he must be
able to submit evidence in the proceedings in some form. The Court later clarified
(in Gueye and Salmeron Sanchez) that this right to be heard in
the proceedings entailed the possibility for the victim to describe what
happened and to express an opinion, but not to insist on any particular
penalty.

Next, victims had the right to receive information on
a number of issues, inter alia on the
conduct of the criminal proceedings following their complaint and on the
release of the accused or convicted person, at least where there might be a
danger to the victim. If victims were parties or witnesses, Member States had
to take necessary steps to reduce any communication difficulties they face
(presumably by providing for translation and interpretation; this fell short of
the later EU Directive on translation and interpretation for suspects).
Member States also had to ensure legal and non-legal aid was provided to
victims who are parties, and that victims who were witnesses or parties might receive
reimbursement of their expenses. (Compare to the proposal on legal aid for
suspects, discussed here).

Victims’ privacy and safety had to be protected, inter
alia from reprisals from the offender. This could entail special methods of
giving testimony, ensuring lack of contact with the offender in court proceedings,
and limiting photography of victims in courtrooms. The CJEU clarified in Gueye
and Salmeron Sanchez that these rules aimed ‘to ensure that the ability of victims adequately to take part in the
criminal proceedings is not jeopardised by the possibility that their safety and
privacy is placed at risk’. But victims’ right to a private life didn’t mean
that they could influence the penalties which courts could impose upon
offenders, such as a mandatory injunction in domestic violence cases, since
these provisions in the Framework Decision did not aim to regulate any indirect consequences to the victims’
private life stemming from the imposition of criminal penalties upon offenders.

Member States had to ensure that it was possible for
the victim to receive a decision on compensation from the offender in criminal
proceedings, unless in certain cases compensation is provided in another
manner; and Member States had to return victims’ property that was not needed
for the purpose of criminal proceedings. The Advocate-General’s opinion in Dell’Orto argued that the former
right had to include compensation for pecuniary losses, and that any exception
from the possibility to obtain a decision on compensation had to be limited to
certain cases only and take place usually within the framework of the same
proceedings which resulted in a conviction of the offender. As for the return
of property, the opinion argued that the obligation to return it only applied
where the ownership of the property was undisputed or had been established in
criminal proceedings; otherwise the issue is a matter for civil law.

The Framework Decision also required Member States to
‘seek to promote penal mediation’ between victim and offender ‘for offences
which it considers appropriate’. The CJEU clarified this obligation in Eredics:
Member States had discretion to decide which offences are covered by such
proceedings. While their discretion might be affected by a need to use
objective criteria to decide on which cases to cover, it was not a breach of
the Framework Decision to confine penal mediation to cases involving offences
against the person, transport safety, or offences against property. Member
States could equally exclude domestic violence cases from penal mediation (Gueye
andSalmeron Sanchez).

There were specific provisions for victims who are
resident in another Member State, and for cooperation between Member States. Finally,
Member States also had to promote victim support organizations, train personnel
in contact with victims (particularly police officers and legal practitioners),
and ensure that intimidation of victims cannot occur in venues such as courts
and police stations.

The Commission’s
first report on the national transposition of most provisions of the
Framework Decision was quite critical regarding the lack of reported national
measures which fully met the specific requirements of the Framework Decision. Its second report concluded that implementation of the Framework Decision was still
‘not satisfactory’, due to the continued variations and omissions in national
law and the decision of some Member States to implement the Framework Decision
by non-binding means.

The 2012 Directive

From today’s
date, the Directive has fully replaced the previous Framework Decision (except
in Denmark, which had an opt-out). One difference with the previous rules is
the legal effect of the law: unlike the Framework Decision, the Directive can
confer directly effective rights on victims, rather than indirect effect only
(as confirmed by the CJEU in Pupino).

Furthermore,
there are a number of substantive changes to the rules, which overall increase
the standard of protection for victims’ rights. First of all, the Directive
contains a new provision on its objectives, including a general requirement of
decent treatment, including non-discrimination; there is also a specific
general rule on child victims (Art 1(2)). The definition of ‘victim’ now expressly
includes family members in the event of a victim’s death (Art 2(1)(a); ‘family
members’ are defined in Art 2(1)(b)). There are wholly new rules on the
victim’s ‘right to understand and to be understood’ (Art 3), followed by
greatly expanded rules on the victim’s right to receive information (Arts 4 to
6; compare to the ‘letter of rights’ Directive for criminal suspects).

Victims have a
‘right to interpretation and translation’, which is much stronger than the
rules on ‘communication safeguards’ in the previous Framework Decision. In
fact, these rights are essentially a short version of suspects’ rights to
information and translation, set out in the EU legislation referred to above.
They also have a ‘right to access victim support services’, which again is much
stronger than the rules on ‘specialist services and victim support
organisations’ in the Framework Decision. On the other hand, the right to be
heard for victims has not changed significantly.

A potentially
important new right for victims is the right to review a decision not to
prosecute (Art 11), although this does not go so far as to require all Member States to
ensure a prosecution following every
complaint by a victim (which some Member States provide
for already in principle). While the ‘procedural rules’ for such
reviews are determined by national law, Member States do not have any
discretion as regards the underlying obligation to provide for such reviews, or
to limit the substantive grounds
which might be pleaded in such challenges. For instance, it should always be
possible to argue that a decision not to prosecute was discriminatory, in light
of the obligation to deal with victims and respond to victims’ complaints in a
non-discriminatory manner (Art 1(1)). The preamble (recital 44) suggests that
this right also applies ‘where a
prosecutor decides to withdraw charges or discontinue proceedings’.

However, the
Directive includes some special rules on this right. Where (under national law)
the role of the victim is established only after a decision not to prosecute
has been taken, only the victims of serious
crime have such a right of review (Art 11(2); on the definition of ‘serious’
crime, see recitals 8 and 18 in the preamble). Also, the right
of review does not apply to decisions
taken by courts (recital 43 in the preamble), so victims have no right to review
of a sentence, or to early release, although they have the right to information
about such developments (Art 6). The right to
review ‘does not concern special procedures, such as proceedings
against members of parliament or government, in relation to the exercise of
their official position’ (Art 11(5)). Member States
can also override the right to review in cases where a prosecutor decides not
to prosecute following an out-of-court settlement (Art 11(3)).

Procedurally, victims
must be given sufficient information about their right to review ‘without
unnecessary delay’ (Art 11(3)). Normally the review must be carried
out by a body independent of the body which decided not to prosecute (recital 43
of the preamble),
but where the decision not to prosecute was taken by the highest prosecution
authority and no review of that decision is possible under national law, the
decision must be reviewed by the same authority (Art 11(4)). Implicitly,
it is not necessary for a court to carry out the review, but that interpretation
is questionable in light of the right of access to court in Article 47 of the
Charter.

The Directive is
silent on what happens if the review is successful. However,
logically the
principle of effectiveness of EU law requires that in this case, at the very
least the prosecutors must reconsider their decision not to prosecute to the
extent that it was flawed, and produce a fresh decision following that
reconsideration.

Next, the
Directive provides for safeguards in restorative justice services, in place of
the prior rules on ‘penal mediation’ (Art 12; it follows that the case law on
penal mediation is no longer relevant). But a series of rules (Arts 13-19) have
not been fundamentally altered: the right to legal aid; the right to
reimbursement of expenses; the right to the return of property; the right to a
decision on compensation from the offender; the rights of victims resident in
another Member State; the general right to protection; and the right to avoid
contact with the offender.

Finally, there
are a number of changes to other important rules: the rules on protection of
victims during criminal investigations (interviews, legal assistance, medical
examinations) have been expanded (Art 20); the right to privacy of victims has
been elaborated further (Art 21); the provisions on victims with ‘specific
protection needs’ have been hugely expanded (Arts 22-24); there are expanded
provisions on the training of practitioners (Art 25); the rules on cooperation
between Member States’ authorities have been expanded (Art 26(1)); and there
are new provisions requiring Member States to make victims more aware of their
rights (Art 26(2)).

Compared to the
previous legislation, the Directive not only has stronger legal effect, but
also has increased substantive rights for victims as regards: non-discrimination;
the ‘right to understand and to be understood’; the right to receive
information; the ‘right to interpretation and translation’; the ‘right to
access victim support services’; the right to review a decision not to
prosecute; safeguards in restorative justice services; protection of victims
during criminal investigations; the right to privacy of victims; and victims
with ‘specific protection needs’, including victims of hate crimes. The Directive is therefore likely to make a significant contribution to the protection of crime victims' rights in the EU - assuming, as always, that it is fully and correctly implemented.

See also: the Commission’s detailed
guidance document concerning implementation of the Directive.

(update: the law discussed in this blog post was adopted in February 2016, and must be applied by 1 April 2018)

Around nine million people are
the subject of criminal proceedings every year in the EU.[1]
All of them are entitled, by law, to a fair trial irrespective of the charge
faced. The presumption of
innocence (set out in Article 6 (2) ECHR and
Article 48 (1) EU Charter) is the cornerstone of the right to a fair trial. It is rooted in the
need to protect the individual against the improper use of coercive state
power. The principle is derived from, and entrenched within, the constitutional
traditions of all EU Member States. In essence, it relates to both the
procedural burden and standard of proof (the prosecution must prove the case
against the defendant beyond reasonable doubt) while also constituting a
privilege in its own right.

In reality, the principle is
persistently under attack within EU Member States because of concern about crime
and security, because of rampant managerialism in a climate of austerity[2] and
because of penal populism. Too often, a more ‘effective’ criminal justice
system is portrayed solely as a system which convicts more people. Consequently, any discussion on how best to protect
the presumption in contemporary criminal justice systems is to be welcomed. In
the EU context, the effective standard promotion and enforcement of human
rights is to be particularly encouraged because EU criminal cooperation, via
mechanisms such as mutual recognition (e.g. the European Arrest Warrant - EAW),
has laid bare the variability within criminal justice systems. Although fair
trial standards are set out in the ECHR, and reflected in the EU Charter, their
basic level of protection is neither uniformly transposed nor consistently
enforced. This has undermined a model of criminal cooperation built on ‘mutual
trust’ between Member States. The EU’s response has been the creation of
EU-specific standards in the form of Directives issued in pursuance of the
Roadmap for strengthening procedural rights of suspected or accused persons in
criminal proceedings based on Article 82 of the TFEU.Thus far the following instruments
have been agreed:

·Directive on the right to
information in criminal proceedings establishes that Member States must inform
individuals of their rights, including the right of access to a lawyer and the
right to remain silent;

·Directive on the right to
interpretation and translation in criminal proceedings;

·Directive on the right of
access to a lawyer in criminal proceedings and in European arrest warrant
proceedings (the UK and Ireland have opted out);

It is in this
context that the EU has recently agreed a compromise text on the Proposal for a Directive on the
strengthening of certain aspects of the presumption of innocence and of the
right to be present at trial in criminal proceedings. The stated purpose of the Directive is “to enhance the right to a fair trial in
criminal proceedings by laying down minimum rules concerning certain aspects of
the presumption of innocence and the right to be present at the trial” (Recital
4a). This should: “strengthen the
trust of Member States in the criminal justice systems of other Member States
and […] thus help to facilitate mutual recognition of decisions in criminal
matters. Such common minimum rules should also remove obstacles to the free
movement of citizens throughout the territories of the Member States.” (Recital
5)

Before looking at some of the key
points of the Directive, there are two points to note: first, although
compliance with existing law (ECHR) is noted to be a problem, EU standard
setting has not been based on any empirical legal study. The precise scope and substance of the
presumption of innocence can be harder to define within comparative contexts
and this required further consideration. Second, Article 52(3) of the
Charter confirms that the EU may raise standards beyond those of the ECHR but
it cannot permit States to fall below them (note also the non-regression clause
in Article 12 of the Directive). The ECHR is thus the core baseline for any
assessment of the efficacy of new standards. Consequently, if the agreed
instrument is not, at the very least, consistent with the ECHR, it is difficult
to conclude it will have any positive benefit for the accused or address the
problems it seeks to resolve.

The Directive

Article 1 confirms that the Directive is
intended to lay down minimum rules on “certain aspects” of the right to the
presumption of innocence in criminal proceeding” and the right to be present at
the trial in criminal proceedings. The Directive is not intended, therefore, to
be an exhaustive study of the principle and the ECHR will still be the main
guide to those aspects which are not included in the text.

Article 2: Scope

Article 2 confirms that the Directive
will apply at “all stages from the moment when a person is suspected or accused
of having committed a criminal offence, or an alleged criminal offence, until
the final determination of the question whether the person has committed the
offence concerned and that decision has become definitive”. Recital 6 confirms
that it applies “only to criminal proceedings, as interpreted in the case-law
of the Court of Justice of the European Union (Court of Justice), without
prejudice to the case-law of the European Court of Human Rights. Administrative
proceedings, including administrative proceedings that can lead to sanctions, such
as proceedings relating to competition, trade, financial services, traffic
offences, or tax, including tax surcharge, and investigations by administrative
authorities in relation to such proceedings, as well as civil proceedings,
should not be covered by this Directive.”

There is no recognition of the possible
consequences that admissions made in administrative proceedings could have on subsequent
criminal proceedings. Further, despite the meaning of the term criminal
proceedings being “without prejudice” to the definition established by the
ECtHR, the Directive seems to contradict this. Article 6 (2) ECHR refers to a “criminal offence” but
this has been interpreted to encompass types of cases beyond the classically
“criminal”, for example, professional disciplinary proceedings or
certain administrative offences which may fall within the ambit of the criminal
head of Article 6 (e.g. Lutz v Germany, No. 9912/82,
25/08/1987; Bendenoun v. France 12547/86,
24/02/1994).

Further, the Directive applies only to
natural persons and therefore excludes legal persons (e.g. companies). In a Joint Position Paper in 2014, Fair
Trials International, noted that this leaves “their protection to existing
safeguards, while acknowledging that the case law of the ECtHR has not clearly
recognised the right of silence for legal persons” (para 12).[3] Given
that legal persons can clearly be affected by the mutual recognition agenda,
this is an opportunity missed in terms of clarifying and enhancing protection.

Additionally, as FTI has noted, unlike
the Directive on access to a lawyer (Article 2(3)), this Directive does not
extend protection explicitly to those “persons other than suspects or accused
persons who, in the course of questioning, become suspects or accused persons”.
There appears to be no justification for this inconsistency.

Article 3:
Presumption of innocence

Article 3 is simply a restatement of the
principle. It sets out “Member States shall ensure that suspects and accused
persons are presumed innocent until proven guilty according to law”. There is no attempt to articulate the nature
of the provision further or set out the core aspects of the presumption for the
purposes of the Directive.

For example, the ECtHR has confirmed
that, in practice, for the presumption to be meaningful, certain procedural safeguards must be in place.
For example, the prosecution will need to produce evidence of guilt in the trial (Barberá, Messegué and Jabardo
v. Spain, No. 10590/83, 6.12.98) and the defendant must be given the right to be heard in
his or her own defence (Minelli v.
Switzerland No. 8660/79, 25.3.83). It will also be unlawful to
base a conviction solely on the silence of an accused (Murray
v. UK, No. 18731/91,
8.2.96).
Consequently, the presumption is closely tied to the ability of the suspect to
defend him/herself by receiving information about the charge so that s/he may
prepare and present her/his defence accordingly (Barberá, Messegué
and Jabardo v. Spain). A
document aimed at ensuring consistency should have articulated these issues
more clearly.

Article 4:
Public references to guilt before proven guilty

Article 4 putsMember States under an obligation to “take the necessary measures”
to ensure that there are no public statements made by “public authorities”, as
well as judicial decisions (save for verdicts), before suspects have been
proven guilty according to law (see also Recitals 13 and 13a). This does not
include prosecution attempts to prove the case or the public dissemination of
information on the proceedings when it is “strictly necessary” for reasons
relating to the criminal investigation or for the public interest. Appropriate
remedies must be made available in the event of a breach (Article 10).

The
case law of the ECtHR is quite substantial in this area (e.g. Allenet
de Ribemont v. France, No. 15175/89,
10.02.1995) and more detailed guidance may help to drive up
standards. Additionally, reference could have been made to the Council of Europe’s
standards (CoE Recommendation Rec (2003)13 on the Provision of Information
through the Media) particularly Principles 1 and 2 to assist in clarifying the
scope and content of this Article.

Article 4a -
Presentation of suspects and accused persons

This provision obliges Member States to
“take appropriate measures” to ensure that suspects are not “presented as being
guilty, in court or in public, through the use of measures of physical
restraint” (see also Recital 13c). An exception is made under Article 4a (2) if
the measures are required for security purposes or to prevent suspects
absconding or having contact with third persons.

The ECtHR has established that an accused should not be
treated in a way which undermines the presumption of innocence, e.g. by being
in a caged dock without justification or being required to wear prison uniforms
(Ramishvili and Kokhreidze v.
Georgia, No. 1704/06, 27.1.09; Jiga v. Romania, App. No. 14352/04, 16.3.10). The
Directive arguably offers less protection by focusing solely on physical
restraint. The only concession to this lies in the rather weak assertion in
Recital 13d which requests that Member States “refrain from presenting suspects
in prison clothes where “practically possible”.

Article 5: Burden
of proof

Article 5 deals with the burden of
proof. It requires Member States to “ensure that the burden of proof in
establishing the guilt of suspects and accused persons is on the prosecution”. This
is an important issue. The burden of proof refers to the fact that the
prosecution who must prove the case against the accused.
The initial draft of Article 5 initially contained an article permitting the
burden of proof to be shifted to the defence. The European Parliament’s Civil
Liberties Committee successfully proposed an amendment deleting this burden of
proof shifting provision.

However, Recital 14 permits presumptions
of fact and law “confined within reasonable limits, taking into account the
importance of what is at stake and maintaining the rights of the defence, and
the means employed have to be reasonably
proportionate to the legitimate aim sought to be achieved. The presumptions
should be rebuttable; in any case, they may only be used provided the rights of
the defence are respected”. Presumptions of fact and law create reverse burdens
of proof which can clearly undermine the presumption of innocence. The ECtHR
has permitted the evidential burden to be shifted to the defence but the
importance of what is at stake and the safeguards which exist to protect the
rights of the defence must be considered when determining whether a reverse
burden is acceptable (Salabiaku v. France, Nos. 10519/83, 10519/83, 7.10.88). No reference is made in the Directive for the
need for specific safeguards to protect the rights of the defence in cases of
presumptions of fact or law.

Article 6: Right to remain silent and right not to
incriminate oneself

Article 6 (formerly Articles 6 and 7) requires that the suspect has the right to remain silent “in relation to the
offence that they are suspected or accused of having committed”. This should
surely have been extended to the right to silence in relation to the commission
of any offence.

The Directive
also confirms that “suspects and accused persons have the right not to
incriminate themselves” (Saunders v. the
United Kingdom, No. 19187/91, 17.12.96).
Under
Article 6 (1) ECHR, the right not to incriminate oneself presupposes that the
prosecution must prove their case against the accused without recourse to
evidence obtained “through methods of coercion or oppression in against the
will of the accused”. The importance of informing a suspect of the right to
remain silent is crucial yet the Directive makes no comment on this and makes
no direct link in the operational text (as opposed to the Recitals) between
this right and the Directive on the Right to Information or the Directive on
the Right of Access to a Lawyer. Access to a lawyer is part of the procedural
safeguards to which the ECtHR will have regard when examining whether any
procedure has undermined the privilege against self-incrimination. If an
accused has no lawyer, s/he has less chance of being informed of his/her rights
and there is less chance that they will be respected (Pishchalnikov
v. Russia, No. 7025/04, 24.9.09).

The ECtHR has
noted that even where a person willingly agrees to give statements to the
police after being informed that his/her words may be used in evidence against
him/her, this cannot be regarded as a fully informed choice if s/he has not
been expressly notified of his right to remain silent and if his/her decision
has been taken without the assistance of counsel (Navone and Others
v. Monaco, No. 62880/11, 24.10.13; Stojkovic v. France
and Belgium, No. 25303/08, 27.10.11).

Yet, the Directive contains no reference
to waiver of rights. The ECtHR has said, consistently, that a person can waive
any fair trial guarantees of their own free will, either expressly or tacitly,
but that a waiver requires safeguards for it to be effective, namely it must:
(i) be established in an unequivocal manner; (ii) be attended by minimum
safeguards commensurate to its importance; (iii) be voluntary; (iv) constitute
a knowing and intelligent relinquishment of a right; and (v) if implicit from
the accused’s conduct, it must be shown that s/he could reasonably have
foreseen what the consequences of his/her conduct would be. Further, reasonable
steps should be taken to ensure the accused has a level of understanding
commensurate to their personal situation (Panovits
v. Cyprus,No. 4268/04,
11.12.08).States will need to take additional steps to protect the
rights of vulnerable suspects such as persons with disabilities and children,
for example by arranging for third parties to support the individual.

It is of note that, in contrast,Article 9 oftheDirective on the Right of Access to a Lawyer creates
three conditions for a valid waiver: (i) the suspect must be provided, orally
or in writing, with clear and sufficient information in simple and
understandable language about the content of the right concerned and the
possible consequences of waiving it; (ii) the waiver must be given voluntarily
and unequivocally; and (iii) it must be recorded in accordance with the law of
the EU Member State. However,
it should be noted that the draft Directive on procedural safeguards for
children suspected or accused in criminal proceedings confirms that children
may not waive their right to a lawyer.Further, an EU Recommendation on procedural
safeguards for vulnerable persons recommends that it should not be
possible for vulnerable persons to waive their right to a lawyer (Recommendation of 27 November
2013 on procedural safeguards for vulnerable persons). Waiver is not addressed
in the Directive and it is not clear why similar protections to the right to
silence have not been established. Although Recitals 25c and 25d make reference
to vulnerable suspects, they make no specific direction on the substance of the
protection they require.

Under Article 6 (2),
in line with the ECtHR jurisprudence, “the exercise of the right not to
incriminate oneself shall not prevent gathering evidence which may be lawfully
obtained through the use of legal compulsory powers and which has an existence
independent of the will of the suspects or accused persons”. The ECtHR has
noted this includes documents acquired pursuant to a warrant, breath, blood and
urine samples, and bodily tissue for the purpose of DNA testing (Ortiz and Martin v. Spain, No. 43486/98,
15.6.99).

Article 6 (2b) of
the Directive permits Member States’ judicial authorities to take into account
“the cooperative behaviour of suspects and accused persons when sentencing”. No
explanation is given for what “cooperative behaviour” means and certainly an
“admission of guilt” is not excluded. This appears contradictory, confused and
potentially undermining. Discounts for ‘cooperative behaviour’ are common in
many criminal justice systems but they may create perverse incentives to plead
guilty. All incentives to guilty pleas may compromise the right of defendants
to be presumed innocent as they relieve the prosecution of the burden of
proving guilt, and place pressure on suspects to admit an offence. Further
thought should have been given to the implications of this Article on practice.

Article 6 (3) notes that “the exercise of the
right to remain silent and of the right not to incriminate oneself shall not be
used against a suspect or accused person and shall not be considered as
evidence that the person concerned has committed the offence which he or she is
suspected or accused of having committed”. This is welcome and appears to go
further than the ECtHR which has found that an accused’s decision to remain silent
throughout criminal proceedings may carry consequences, such as ‘adverse
inferences’ being draw from the silence. (Condron v. United Kingdom, No. 35718/97, 2.5.00; Murray
v. UK, No. 18731/91,
8.2.96).

Under
Article 6 (5) Member States are not precluded from deciding that “in minor
offences, the conduct of proceedings, or certain stages thereof, may take place
in writing and/or without questioning of the suspect or accused person by the
police or other law enforcement or judicial authorities in relation to the
offence concerned, provided this is in conformity with the right to a fair
trial”. The Commission has made a specific statement in relation to this
provision stating that it should not be used to allow derogations from the
right or to allow Member States to draw negative consequences from the exercise
of the suspects' right to remain silent.

A proposal by FTI for the audio-visual recording
of police interviews to prevent violations was not taken on board. Thus, the
circumstances in which an accused agrees to talk remain extremely important. This
is particularly important as there is no specific provision reinforcing the
prevention of subterfuge to undermine the right to silence by eliciting
confessions (e.g. by the use of informants) and no specific prohibition on the
use of such evidence at trial. The ECtHR has clearly held that the privilege against self-incrimination
includes the right not to incriminate oneself through coercion or oppression,
in defiance of the will of the accused: Allan
v. the United Kingdom, No. 48539/99, 12.11.02. This should
have been clearly restated.

Article 8: Trials in absentia

Article 8 (and
Recitals 21 and 22) re-affirm the individual’s right to be present at their
trial. The ECtHR has confirmed that this is implicit
in the right to a fair trial by way of a public hearing (Jacobsson
v. Sweden, No. 16970/90, 19.2.98) and that it is difficult to see how anyone can exercise their defence
rights without being present at their own trial (Colozza
v. Italy,
No. 9024/80, 12.2.85).

However,this
principle is not absolute and this is reflected in the provisions of the
Directive. Articles 8 (2) and (2a) permit Member States to hold trials in
someone’s absence (and to enforce the decision of that trial) only if: (a) the
suspect or accused person has been informed in due time of the trial and of the
consequences of a non-appearance; or (b) the suspect or accused person, having
been informed of the trial, is represented by a mandated lawyer, who was
appointed either by the suspect or accused person, or by the State. This is narrower
than the position set out by the ECtHR which has indicated that only “certain
established facts might provide an unequivocal indication that the accused is
aware of the existence of the criminal proceedings against him and of the
nature and the cause of the accusation and does not intend to take part in the
trial or wishes to escape prosecution” (Sejdovic v Italy, No.
56581/00, 1.3.06, at [99]). For example, “where the accused states publicly or
in writing that he does not intend to respond to summonses of which he has
become aware through sources other than the authorities, or succeeds in evading
an attempted arrest …. or when materials are brought to the attention of the
authorities which unequivocally show that he is aware of the proceedings
pending against him and of the charges he faces” ([99]).

Under Article 8 (3), if Member States cannot comply with
Article 8 (2) because the suspect or accused person cannot be located despite
reasonable efforts having been made, “Member States may provide that a decision
can nevertheless be taken, and that such a decision can be enforced”. However,
in this situation, Member States “shall ensure that when suspects or accused
persons are informed of the decision, in particular when they are apprehended,
they shall also be informed of the possibility to contest the decision and of
the right to a new trial, or another legal remedy, in accordance with Article
9”. The ECHR makes no such distinction in relation to when an accused has a
right to a retrial. Indeed,
in the case of Sejdovic v Italy, (No. 56581/00,
1.3.06), the ECtHR confirmed that “a denial of justice … undoubtedly occurs
where a person convicted in absentia is unable subsequently to obtain from a
court which has heard him a fresh determination of the merits of the charge, in
respect of both law and fact, where it has not been established that he has waived
his right to appear and to defend himself” (at [82]).

Article 8 (4) and (5) are both made “without prejudice to
national rules” to permit temporary exclusion of a suspect from their trial or
proceedings being conducted in writing if certain conditions are met. It is
unhelpful to refer back to national law in a document which aims to consolidate
rights at European level.

Finally, it should be noted that the Directive attempts to
set standards within national jurisdictions, a situation that should be distinguished
from that in Melloni where national
standards potentially impeded the uniform application of cross-border obligations.
In dealing with a question of trial in absentia, the CJEU in the case C-399/11, Stefano
Melloni v. Ministerio Fiscal, 26.2.13 appeared to suggest that the Charter
embodies a maximum rather than a minimum standard of human rights protection (save
where the EU has not fully harmonised the field). This was to prevent the efficacy of the EAW
Framework Decision (as amended by a later Framework Decision concerning in absentia proceedings and mutual recognition) being compromised. The Directive on the presumption of
innocence, however, is specifically articulated as a set of minimum standards meaning
that Melloni does not prevent higher
standards being established nationally. Indeed, Article 12 explicitly prohibits
the Directive from limiting the law of any Member State which provides a higher
level of protection.

Article 9: Right to a new trial

This
permits the right to a retrial only where the conditions in Article 8 (2) have
not been met. In any retrial, “Member States shall ensure that the persons concerned
have the right to be present, to participate effectively, in accordance with procedures
under national law, and to exercise their rights of defence”. A previous
proposal stipulating that retrials could be denied to those who fail to request
a retrial or appeal “within a reasonable amount of time has been removed. But this provision remains weak.

Under the
ECHR, if
a person is not present at trial, they cannot exercise their defence rights
under Article 6 (3) ECHR. The ECtHR has held that without a clear demonstration
of the accused’s actual knowledge of the proceedings, a court may not commence
a trial in absentia unless the defendant has a right to retrial, Krombach
v. France,
No. 29731/96, 13.2.01 Such retrial or appeal must fully comply with the demands
of Article 6 of the ECHR, including the right to confront previous evidence
including the cross-examination of witnesses. This provision should have reflected
the law more closely.

Article 10: Remedies

Article 10 confirms
that “Member States shall ensure that suspects and accused persons have an
effective remedy if their rights under this Directive are breached”. Further, “without prejudice to national rules
and systems on the admissibility of evidence, Member States shall ensure that,
in criminal proceedings, in the assessment of statements made by suspects or
accused persons or of evidence obtained in breach of their right to remain
silent or their right not to incriminate themselves, the rights of the defence
and the fairness of the proceedings are respected”. Recital 26 confirms that
“as far as possible” the suspect should be placed “in the same position” they
would have been in but for the breach.

This could have
been a much more robust provision. It could, as a minimum, have reflected the
current state of ECHR/EU law. The right to an effective remedy is set out in
Article 13 ECHR and Article 47 EU Charter. The primary requirement is that the
remedy should be “effective in
practice as well as in law”. The type of remedy required will depend on
the circumstances of the case but some core principles have been developed to
determine effectiveness. For example, an effective remedy must be: (i) accessible; (ii) capable of providing
redress in respect of the applicant’s complaints; and (iii) offer reasonable
prospects of success (Selmouni
v. France, No.
25803/94, 28 July 1999).In terms of unlawfully obtained
evidence, the question is whether the proceedings as a whole, including the way
in which the evidence was obtained, were fair. This involves an examination of
the alleged unlawfulness in question (e.g. Khan v. the United
Kingdom, No. 35394/97,
12.5.00). Particular considerations apply in respect of the use in criminal
proceedings of evidence obtained in breach of Article 3. The use of such
evidence always raises serious issues as to the fairness of the proceedings,
even if not decisive in securing a conviction (e.g. Jalloh
v. Germany,
No. 54810/00, 11.7.06). Recital 26a
merely notes that “regard should be had” to the case law on Article 3. This is disappointingly
weak phrasing for such an essential protection.

Conclusion

Governments are constantly
struggling to balance security fears with a respect for individual human
rights. This is complicated further by the growing disconnect between citizens
and their governments which, in itself, presents a challenge to the legitimacy
of political actions. The result is that we have begun to lose faith in the
capacity of our criminal justice systems to tackle crime and so we start to
look for shortcuts to restore an order we believe has been lost. All too often,
crime control has become mired in the kind of political debate which looks for
simple answers. This makes it easy to overlook the fact that our criminal
justice systems do not exist solely to churn out speedy convictions. It allows
us to forget that suspects are individuals who have not yet been proved guilty of any offence.

In this context,
an EU Directive restating the importance of the presumption of innocence is a welcome
step. But does this instrument go far
enough? Based on the analysis above, my answer would be no. There are three key reasons for this conclusion:
first, standard setting has been built on assumptions rather than based on an
empirical understanding of the operation of criminal justice systems and the
reasons why current standards fail; second, the Directive does not consistently
shore up the basic requirements of the ECHR and its case law despite the
non-regression clause in Article 12; and third, the Directive fails to
reference effectively previously agreed EU instruments to create a holistic
framework for the protection of fundamental rights.

Under Article
13, the Directive is to be transposed 24 months after its publication. The true
test of its efficacy will lie in its capacity to challenge unlawful practice.